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ATI'ORNEY OR PARTY WITHOUT ATTORNEY (Nome, sToTebor number, and address): FOR COURT USE ONLY
John R.Brydon (83365)/POU| A. Peters (148497)/Jomes V. Weixel (166024)
DEMLER, ARMSTRONG & ROWLAND, LLP
101 Mon’rgomery Son Francisco, CA 94104
Street, Suite 1800,
TELEPHONE NO: (415) 949—1900 FAX NOS (415) 354-8380
ATTORNEY FOR (Nome): Defendant FIREINSURANCE EXCHANGE
SUPERIOR COURT OF CALIFORNIA ' COUNTY OF FRESNO
Civil Division
1130 O Street
Fresno, California 93721 -2220 E_F||_ED
11/17/2021 9:39 PM
PLAINTIFF/PET'T'ONER: EDWARD FUNEZ Superior Court of California
County of Fresno
DEFENDANT/RESPONDENTI FIRE INSURANCE EXCHANGE, e1 By: son'a Nunez, DePUty
ol.
CASE NUMBER:
OPPOSITION TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE
19CECGOZ755
D Plain’riff(s) Defendonfls) D Cross-comploinonfls) D Cross—defendon’r(s) D Other(s) Opposition to
request o Pretrial Discovery Conference filed by Plaintiff on 11/8/2021
This opposition relates To:
D A dispu’re regarding o reques’r for production of documents, se’r1 propounded on Defendant
D A dispu’re regarding form or special interrogatories, set propounded on .
D A dispu’re regarding o deposition subpoena directed o’r for deposition scheduled for
D A dispu’re regarding o deposition notice, production of documents o’r o deposition or deposition ques’rions
related To The deposition of scheduled for
D A dispu’re regarding mone’rory, issue, evidence or terminating sanctions related To
D Privilege is’rhe basis for ’rhe refusal to produce documents 0nd o privilege log iso’rfoched which complies
wi’rh Local Rule 2.1 .17(B).
The por’ries hove engaged in ’rhe following meaningful mee’r 0nd confer effor’rs prior To filing This opposition:
(Describe in de’roil all meet 0nd confer efforts including cmy narrowing of ’rhe issues or resolutions reached vio
These effor’rs.)
Plaintiff'schronology of mee’r-ond—confer efforts isbasically correc’r, although There ore several
mischoroc’rerizofions of ’rhe Court's previous directions 0nd the indications given by Defendant's previous
counsel. As To Plaintiff'spoint about Defendant's counsel ul’rimo’relydeclining To speak by phone, fhof course
was token because There had been recent meeT—ond—confer conversations between counsel on ’rhis 0nd other
discovery disputes in which Plaintiff had agreed to 0n extension or other deadline, only to hove Plaintiff's
counsel or his supervisor backtrack on Those agreements, mischoroc’rerize those agreements, ond/or send
hostile 0nd denigro’ring emails To Defendant's counsel (on unfortunate pattern). Defendant's counsel Thus
declined further Telephone confoc’r, os discussions by email ore much more reliable 0nd less subject ’ro
misin’rerpreTofion or mischoroc’rerizo’rion.
PCV—71 R054 9 Fresno County Superior Court
OPPOSITION T0 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE
Mandatory Local Rule 2.] l] 7
A brief summary of why The requested discovery should be denied, including The facts 0nd legal arguments in
suppor’r is Gs follows:
(Excep’ring o privilege log ifchecked above, no pleadings, exhibits, decloro’rions, or ottochmen’rs shall be
oHochedJ
1. The subject requests demand documents regarding the Training courses Token by Those of Defendant's
personnel who were involved in the handling of Plaintiff‘scloim. Defendant provided Plaintiff with o IisT of oll
moTeriols known or believed To be responsive, 0nd asked Plaintiff to indicate which materials he wonTed
produced. Upon receipt of those selections, Defendant compiled o master list of materials, with duplicates
eliminated, for which i1would search.
As Defendant hos explained, mony of The training materials ore noT eosily refrievoble. A significant portion of
The training courses token by Defendant's employees ore provided by Third—porfy vendors under application
licenses That ore in effect for a limi’redperiod of time. When those licenses expire, so does Defendon’r's access
To the materials, Therefore, some of the materials requested by Plaintiff (The extent of which is sfill being
determined) ore noT within Defendant's obilify ’ro produce. Also, mosT of ’rhe Training mo’reriols Thof ore residen’r
on Defendant's systems ore accessible only through proprietary applications that do not easily provide Those
documents in c1 formo‘r that con be printed 0r otherwise produced in a readable version. Those materials as
well ore difficult, or in some instances impossible, To retrieve and produce.
2. In general, finding responsive documents is not a matter of simply having o staff member search
Defendant's systems for The name of The por’riculor course or Training module reques’red by Plainfiff. Instead,
Tracking down the applicable training materials which hove been reques’red by Plaintiff requires substanfiol
expenditures of ’rime 0nd effort by Defendant's staff. Defendant's counsel (both in—house 0nd retained) Then will
hove To review ony documen’rs proposed To be produced for privileged, proprie’rory, 0nd otherwise protected
mc’reriols. Such searches ore not something That isdone in The course of Defendant‘s ordinary business, 0nd is
certainly not The only Tosk 0T hond for Defendant's staff. Those points notwithsTonding, Defendant is actively
Trying To Ioco’re ollresponsive mo’reriols to The ex’rent They ore in Defendant's obiIiTy To produce.
3. Plaintiffs PDC requesT also sidesteps the focf Thof Defendant wos directed To "endeavor” To produce The
documents. The foc’r ThoT Defendant hos been searching for whatever documents ore in its possession 0nd
ability to produce shows that Defendant hos, in foot, endeavored to comply.
4. Finally, Trial is not set until Augus’r 29, 2022. Moreover, (:15Ploin’riff acknowledges in his PDC request, Plaintiff
woi’red a full yeor offer receiving Defendon’r's original responses to these RFPs To o’r’remp’r o meeT-ond-confer
process. Obviously, Plaintiff's demand That Defendant produce these documents hardly seems like The exigenf
mo’r’rer Ploinfiff claims i’r
To be. Further compulsion of discovery should be denied.
is undersTood
l’r
that the filing of the RequesT for o Pre’rriolDiscovery Conference Tolls ’rhe Time for filing o
moTion to compel discovery on the disputed issues for The number of days beTween The filing of The request
0nd issuance by The Court of subsequent order pertaining To the discovery dispute.
(:1
PorTy received The REQUEST FOR PRETRIAL DISCOVERY CONFERENCE On: H {852] 8:5] 9m
Do’re
Pursuant To Locol Rule 2.1 .1 7(A)(1 ), this opposifion is being filed within five (5) court doys of service of The request
for o Pretrial Discovery Conference, extended five (5) days for service by mail, and hos been served on The
opposing por’ry.
Opposing PorTy was served wi’rho copy of the OPPOSITION TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE
on: 11/17/21
Date
|declare under penalty of perjury under the lows of the S’rote of California That the foregoing istrue 0nd correct.
)
11/1 7/2021 James v. Weixel
Dofe Type or PrintNome Slgfio re of Porfy 'or Affrney
forPony
PCV»71 R054 9 OPPOSITION To REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Fresno Céumv SUper'IorCour?
Mandatory Local Rule 2.1.17
PROOF OF SERVICE
Edward Funez et vs. Fire Insurance Exchange
Fresno Superior Court Case N0. 19CECG02755
l am employed in the County 0f San Francisco, State 0f California. l am over the age 0f
18 and not a party t0 the Within action; my business address is 101 Montgomery Street, Suite
1800, San Francisco, California 94104.
On November 17, 2021, I served the foregoing document(s) described as OPPOSITION
TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE (Plaintiff’s First Set 0f
Requests for Production 0f Documents) 0n the following interested parties in this action as
follows:
J. Edward Kerley, Esq. Michelle R. Ferber
Dylan L. Schaffer, Esq. Connor M. Day
Yameen Omidi, Esq. Ferber Law, A Professional Corporation
KERLEY SCHAFFER, LLP 2603 Camino Ramon, Suite 385
10 1939 Harrison Street, Suite 900 San Ramon, CA 94583
Oakland, CA 94612 Tel: (925) 355-9088/Fax: (925) 263-1676
11 Telephone: (510) 379-5801 cday@ferberlaw.com
Facsimile: (5 10) 228-0350 mferber@ferberlaw.com
12 service@kslaw.us Attorneysfor Defendant American
Attorneysfor PlaintiffEdward Funez Contractors Indemnity Company
13
14
Patrick S. Schoenburg
15
Alexi P. Antoniou
Wood Smith Henning &Berman LLP
16 7108 North Fresno Street, Suite 250
Fresno, CA 93720-2952
17 Tel: (559) 437-2860/Fax: (559) 438-1350
pschoenburg@wshblawxom
18 aantoniou@wshblaw.com
Attorneysfor Defendant Benevento 'S
19
Cleaning &Rest0rati0n Service Inc. dba
20 Service Master by Benevento
21
ONLY BY ELECTRONIC TRANSMISSION. Only by emailing the document(s) to the persons
22 at the e-mail address(es). This isnecessitated during the declared National Emergency due to the
Coronavirus (COVID—19) pandemic because this office will be working remotely, not able to
23 send physical mail as usual, and is therefore using only electronic mail. No electronic message
or other indication that the transmission was unsuccessful was received within a reasonable time
24 after the transmission. We will provide a physical copy, upon request only, when we return t0 the
office at the conclusion 0f the national emergency.
25
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I declare under penalty of perjury under the laws of the State of California that the above
28 is true and correct. Executed 0n November 17, 2021 at San Francisco, California.
l
PROOF 0F SERVICE
James Weixel
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PROOF 0F SERVICE
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ATI'ORNEY OR PARTY WITHOUT ATTORNEY (Nome, sToTebor number, and address): FOR COURT USE ONLY John R.Brydon (83365)/POU| A. Peters (148497)/Jomes V. Weixel (166024) DEMLER, ARMSTRONG & ROWLAND, LLP 101 Mon’rgomery Son Francisco, CA 94104 Street, Suite 1800, TELEPHONE NO: (415) 949—1900 FAX NOS (415) 354-8380 ATTORNEY FOR (Nome): Defendant FIREINSURANCE EXCHANGE SUPERIOR COURT OF CALIFORNIA ' COUNTY OF FRESNO Civil Division 1130 O Street Fresno, California 93721 -2220 E_F||_ED 11/17/2021 9:39 PM PLAINTIFF/PET'T'ONER: EDWARD FUNEZ Superior Court of California County of Fresno DEFENDANT/RESPONDENTI FIRE INSURANCE EXCHANGE, e1 By: son'a Nunez, DePUty ol. CASE NUMBER: OPPOSITION TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE 19CECGOZ755 D Plain’riff(s) Defendonfls) D Cross-comploinonfls) D Cross—defendon’r(s) D Other(s) Opposition to request o Pretrial Discovery Conference filed by Plaintiff on 11/8/2021 This opposition relates To: D A dispu’re regarding o reques’r for production of documents, se’r1 propounded on Defendant D A dispu’re regarding form or special interrogatories, set propounded on . D A dispu’re regarding o deposition subpoena directed o’r for deposition scheduled for D A dispu’re regarding o deposition notice, production of documents o’r o deposition or deposition ques’rions related To The deposition of scheduled for D A dispu’re regarding mone’rory, issue, evidence or terminating sanctions related To D Privilege is’rhe basis for ’rhe refusal to produce documents 0nd o privilege log iso’rfoched which complies wi’rh Local Rule 2.1 .17(B). The por’ries hove engaged in ’rhe following meaningful mee’r 0nd confer effor’rs prior To filing This opposition: (Describe in de’roil all meet 0nd confer efforts including cmy narrowing of ’rhe issues or resolutions reached vio These effor’rs.) Plaintiff'schronology of mee’r-ond—confer efforts isbasically correc’r, although There ore several mischoroc’rerizofions of ’rhe Court's previous directions 0nd the indications given by Defendant's previous counsel. As To Plaintiff'spoint about Defendant's counsel ul’rimo’relydeclining To speak by phone, fhof course was token because There had been recent meeT—ond—confer conversations between counsel on ’rhis 0nd other discovery disputes in which Plaintiff had agreed to 0n extension or other deadline, only to hove Plaintiff's counsel or his supervisor backtrack on Those agreements, mischoroc’rerize those agreements, ond/or send hostile 0nd denigro’ring emails To Defendant's counsel (on unfortunate pattern). Defendant's counsel Thus declined further Telephone confoc’r, os discussions by email ore much more reliable 0nd less subject ’ro misin’rerpreTofion or mischoroc’rerizo’rion. PCV—71 R054 9 Fresno County Superior Court OPPOSITION T0 REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Mandatory Local Rule 2.] l] 7 A brief summary of why The requested discovery should be denied, including The facts 0nd legal arguments in suppor’r is Gs follows: (Excep’ring o privilege log ifchecked above, no pleadings, exhibits, decloro’rions, or ottochmen’rs shall be oHochedJ 1. The subject requests demand documents regarding the Training courses Token by Those of Defendant's personnel who were involved in the handling of Plaintiff‘scloim. Defendant provided Plaintiff with o IisT of oll moTeriols known or believed To be responsive, 0nd asked Plaintiff to indicate which materials he wonTed produced. Upon receipt of those selections, Defendant compiled o master list of materials, with duplicates eliminated, for which i1would search. As Defendant hos explained, mony of The training materials ore noT eosily refrievoble. A significant portion of The training courses token by Defendant's employees ore provided by Third—porfy vendors under application licenses That ore in effect for a limi’redperiod of time. When those licenses expire, so does Defendon’r's access To the materials, Therefore, some of the materials requested by Plaintiff (The extent of which is sfill being determined) ore noT within Defendant's obilify ’ro produce. Also, mosT of ’rhe Training mo’reriols Thof ore residen’r on Defendant's systems ore accessible only through proprietary applications that do not easily provide Those documents in c1 formo‘r that con be printed 0r otherwise produced in a readable version. Those materials as well ore difficult, or in some instances impossible, To retrieve and produce. 2. In general, finding responsive documents is not a matter of simply having o staff member search Defendant's systems for The name of The por’riculor course or Training module reques’red by Plainfiff. Instead, Tracking down the applicable training materials which hove been reques’red by Plaintiff requires substanfiol expenditures of ’rime 0nd effort by Defendant's staff. Defendant's counsel (both in—house 0nd retained) Then will hove To review ony documen’rs proposed To be produced for privileged, proprie’rory, 0nd otherwise protected mc’reriols. Such searches ore not something That isdone in The course of Defendant‘s ordinary business, 0nd is certainly not The only Tosk 0T hond for Defendant's staff. Those points notwithsTonding, Defendant is actively Trying To Ioco’re ollresponsive mo’reriols to The ex’rent They ore in Defendant's obiIiTy To produce. 3. Plaintiffs PDC requesT also sidesteps the focf Thof Defendant wos directed To "endeavor” To produce The documents. The foc’r ThoT Defendant hos been searching for whatever documents ore in its possession 0nd ability to produce shows that Defendant hos, in foot, endeavored to comply. 4. Finally, Trial is not set until Augus’r 29, 2022. Moreover, (:15Ploin’riff acknowledges in his PDC request, Plaintiff woi’red a full yeor offer receiving Defendon’r's original responses to these RFPs To o’r’remp’r o meeT-ond-confer process. Obviously, Plaintiff's demand That Defendant produce these documents hardly seems like The exigenf mo’r’rer Ploinfiff claims i’r To be. Further compulsion of discovery should be denied. is undersTood l’r that the filing of the RequesT for o Pre’rriolDiscovery Conference Tolls ’rhe Time for filing o moTion to compel discovery on the disputed issues for The number of days beTween The filing of The request 0nd issuance by The Court of subsequent order pertaining To the discovery dispute. (:1 PorTy received The REQUEST FOR PRETRIAL DISCOVERY CONFERENCE On: H {852] 8:5] 9m Do’re Pursuant To Locol Rule 2.1 .1 7(A)(1 ), this opposifion is being filed within five (5) court doys of service of The request for o Pretrial Discovery Conference, extended five (5) days for service by mail, and hos been served on The opposing por’ry. Opposing PorTy was served wi’rho copy of the OPPOSITION TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE on: 11/17/21 Date |declare under penalty of perjury under the lows of the S’rote of California That the foregoing istrue 0nd correct. ) 11/1 7/2021 James v. Weixel Dofe Type or PrintNome Slgfio re of Porfy 'or Affrney forPony PCV»71 R054 9 OPPOSITION To REQUEST FOR PRETRIAL DISCOVERY CONFERENCE Fresno Céumv SUper'IorCour? Mandatory Local Rule 2.1.17 PROOF OF SERVICE Edward Funez et vs. Fire Insurance Exchange Fresno Superior Court Case N0. 19CECG02755 l am employed in the County 0f San Francisco, State 0f California. l am over the age 0f 18 and not a party t0 the Within action; my business address is 101 Montgomery Street, Suite 1800, San Francisco, California 94104. On November 17, 2021, I served the foregoing document(s) described as OPPOSITION TO REQUEST FOR PRETRIAL DISCOVERY CONFERENCE (Plaintiff’s First Set 0f Requests for Production 0f Documents) 0n the following interested parties in this action as follows: J. Edward Kerley, Esq. Michelle R. Ferber Dylan L. Schaffer, Esq. Connor M. Day Yameen Omidi, Esq. Ferber Law, A Professional Corporation KERLEY SCHAFFER, LLP 2603 Camino Ramon, Suite 385 10 1939 Harrison Street, Suite 900 San Ramon, CA 94583 Oakland, CA 94612 Tel: (925) 355-9088/Fax: (925) 263-1676 11 Telephone: (510) 379-5801 cday@ferberlaw.com Facsimile: (5 10) 228-0350 mferber@ferberlaw.com 12 service@kslaw.us Attorneysfor Defendant American Attorneysfor PlaintiffEdward Funez Contractors Indemnity Company 13 14 Patrick S. Schoenburg 15 Alexi P. Antoniou Wood Smith Henning &Berman LLP 16 7108 North Fresno Street, Suite 250 Fresno, CA 93720-2952 17 Tel: (559) 437-2860/Fax: (559) 438-1350 pschoenburg@wshblawxom 18 aantoniou@wshblaw.com Attorneysfor Defendant Benevento 'S 19 Cleaning &Rest0rati0n Service Inc. dba 20 Service Master by Benevento 21 ONLY BY ELECTRONIC TRANSMISSION. Only by emailing the document(s) to the persons 22 at the e-mail address(es). This isnecessitated during the declared National Emergency due to the Coronavirus (COVID—19) pandemic because this office will be working remotely, not able to 23 send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time 24 after the transmission. We will provide a physical copy, upon request only, when we return t0 the office at the conclusion 0f the national emergency. 25 26 27 I declare under penalty of perjury under the laws of the State of California that the above 28 is true and correct. Executed 0n November 17, 2021 at San Francisco, California. l PROOF 0F SERVICE James Weixel 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF 0F SERVICE